summit 2022 susan frederick morgan ratner

Susan Frederick, left, NCSL’s senior federal affairs counsel, talks with Morgan Ratner, special counsel with Sullivan & Cromwell, about the U.S. Supreme Court’s recent session.

Examining the Supreme Court’s Abortion Decision

By Mark Wolf | Aug. 4, 2022 | State Legislatures News | Print

The Supreme Court’s decision to strike down the constitutional right to abortion has reverberated through society, including a Tuesday vote in Kansas that resoundingly rebuffed an effort to allow the legislature to remove the right to abortion from the state constitution.

The court’s decision was the focus of the session “Supreme Court Center Stage,” on Wednesday at NCSL’s Legislative Summit. Morgan Ratner, special counsel in Sullivan & Cromwell’s litigation group and former assistant to the U.S. solicitor general, explained how the opinion came to be crafted and what effect it might have on other issues.

Determining Protected Rights

To decide that abortion is not a protected right, the majority had to locate abortion somewhere, “and where Roe v. Wade and Planned Parenthood v. Casey located it is the liberty component of the due process clause,” Ratner said. In figuring out what liberties might be protected, the court determined that a right must be deeply rooted in the nation’s history and tradition.

“To identify that you have to look at 1868, when the 14th Amendment was ratified. Framed that way, it’s not particularly hard. Most states had criminalized abortion, but as a general matter this was not an accepted right at that time,” she said.

The court decided abortion didn’t rise to a right of bodily integrity because abortion was construed “as a unique thing involving women’s rights and what the court called potential life.”

The doctrine of stare decisis (“fancy Latin for ‘let the decision stand,’” Ratner said) directs courts to respect precedent when making decisions. But the court may have concluded that with no right to the procedure in the Constitution, “abortion really had been unsettled, and Roe and Casey didn’t lead to settling the issue. The court does apply a little bit softer version of stare in constitutional cases as opposed to statutory. Constitutional rulings can’t be overridden.”

The court does apply a little bit softer version of stare in constitutional cases as opposed to statutory. Constitutional rulings can’t be overridden. —Morgan Ratner

The joint dissent by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan said the abortion ruling was “catastrophic.”

“On the merits, they said we shouldn’t think the concept of liberty in the 14th Amendment is frozen as of the time of ratification,” said Ratner. “They said it was intentionally a capacious term that has evolved over time. It’s no surprise that those who ratified the 14th wouldn’t have thought of abortion as a rooted and important thing given that women weren’t allowed to vote for another 50 years.”

Justice Clarence Thomas’ concurring opinion—that not only was abortion not an established right but that the test was wrong altogether and he would reconsider rights to contraception and same-sex marriage—has sparked considerable conversation about how striking down Dobbs might affect other due process rights.

“It is an area I talk to a lot of smart people about, and a lot of smart people have different views,” Ratner said.

She questioned whether there was the same ongoing campaign to reconsider contraception and same-sex marriage as there was with abortion. “I don’t frequently hear about fights about contraception,” she said. “I think same-sex marriage debates may be, depending on where you live, a little more debatable but there isn’t the constant ongoing debate that surrounded abortion. I would be hard pressed to think there are five justices who want to reconsider those questions.”

On the merits, however, “it’s hard to see how these issues would necessarily fare any better than abortion,” she said. “If you are looking narrowly at those issues, certainly same-sex activity would have been criminal (in 1868), and contraception wasn’t even invented. These issues would be threatened on an actual merits issue. There are ways to get around it. In same-sex marriage there was an equal protection argument that was part of the court’s decision in Obergefell.”

On the Horizon

Ratner foresees issues that could arise in the wake of the Roe decision: whether abortions are provided in emergency medical situations; preemption of federal law regarding abortion medication; abortion travel bans; and employer benefits plans.

Regarding preemption, Ratner noted that a case in Mississippi is already underway. In challenging the state’s abortion restrictions, the maker of a medication abortion drug, which has been approved by the U.S. Food and Drug Administration, has cited the doctrine of preemption, which says federal law generally takes precedence over state law when the two conflict.

“If states tried to institute interstate travel bans, they are going to run into a lot of litigation, and (Justice Brett Kavanaugh) already threw a lot of cold water on that (in his concurrence),” Ratner said.

“What we haven’t seen a lot of yet but is really lurking is issues relating to employer benefit plans that cover abortion and whether states are going to go after those.”

Mark Wolf is a senior editor in NCSL’s Communications Division.

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